are aggravated by the necessity of close association regardless of thereal feelings that may exist. Certain claims are made by husbands andby wives, which are probably inherent in the relationship; sometimesthey flow from habit and custom, but, from whatever cause, such claimsare so exacting that either the husband or wife finds them hard to meet.

Because of the fact that the feelings of men and women for each otherare deeper and more fundamental than those of any other relation, theyare more subject to misfortune and tragedy. The hatreds born from thedeepest affection are most beyond control. Then the desire of possessionis overwhelming. It would be strange if more killings did not resultfrom the relations of men and women than from any other cause. It iseasy to understand why this is true. It is likewise easy to understandhow laws, reason and judgment are powerless to prevent. Juries seem tounderstand this when women kill husbands and lovers, but along-established code of chivalry and a cultivated attitude towardwomen, which is partly right and partly wrong, make it impossible to seethat men are just as helpless under strong feelings as women. No doubt apublic opinion that would favor divorces on a greater number of groundsand make them easily obtainable would prevent large numbers of suchkillings, but the cause can not be altogether removed.

The law has long singled out killing as the greatest crime, doubtlessbecause man prizes life first of all. Of course every effort should bemade to protect life. Still, in measuring the character of the offender,in determining his possibilities as a useful citizen, homicide isprobably one of the lesser crimes. Many times it implies no moralturpitude, even with those who believe in moral turpitude. It may implyvery little lack of physical stability. Homicide practically neverbecomes an occupation. Most killings are accidental in the sense thatthey are casual and dependent on circumstances, and there is as a rulemuch less danger of repetition than there is of the original commissionof a homicide by one of a defective nervous system who has never beforecommitted an unlawful act. A large number of men convicted of murder areused as "trusties" in our penal institutions, even when theirimprisonment is for a long term, or for life. This shows from theexperience of prison officials that this class of offenders is, as arule, of a better fibre than almost any other class.

Doubtless no sort of treatment will ever entirely get rid of homicide.Brains and nervous systems are so made, that inhibitions are unable toprotect in all cases. Nations and men readily engage in killing, eitherfrom sport or because of a real or fancied wrong. Mob psychology showshow whole communities are turned into ravenous beasts, hunting fortheir prey. The world war, and all wars, show cases of mob psychologythat have led large masses of men to take an active part in killing. Thepursuit of those charged with crime shows that all people like the chasewhen the emotions are thoroughly aroused. Under certain impulses,communities gloat over hangings and commend judges and juries becausethey have the courage to hang, when, in fact, they were too cowardly notto hang and when their reason did not approve the verdict and judgment.Men who do not kill often wish others might die and are pleased andhappy when they do die. We approve of death when it is the right one whodies. Whether all persons are murderers or not may depend upon adefinition of murder. But, beyond doubt, all persons are potentialmurderers, needing only time and circumstances, and a sufficientlyoverwhelming emotion that will triumph over the weak restraints thateducation and habit have built up, to control the powerful surginginstincts and feelings that Nature has laid at the foundation of life.

XI

SEX CRIMES

Most of the inmates of prisons convicted of sex crimes are the poor andwretched and the plainly defective. Nature, in her determination topreserve the species, has planted sex hunger very deep in theconstitution of man. The fact that it is necessary for the preservationof life, and that Nature is always eliminating those whose sex hunger isnot strong enough to preserve the race, has overweighted man and perhapsall animal life with this hunger. At least it has endowed many men withinstincts too powerful for the conventions and the laws that hedge himabout.

Rape is almost always the crime of the poor, the hardworking, theuneducated and the abnormal. In the man of this type sex hunger isstrong; he has little money, generally no family; he is poorly fed andclothed and possesses few if any attractions. He may be a sailor awayfrom women and their society for months, or in some other remoteoccupation making his means of gratifying this hunger just asimpossible. There is no opportunity for him except the one he adopts. Itis a question of gratifying this deep and primal instinct as againstthe weakness of his mentality and the few barriers that a meagreeducation and picked-up habits can furnish; and when the instinctoverbalances he is lost.

Incest, which is peculiarly the crime of the weak, the wretched and thepoor, has a somewhat different origin. Westermarck in his "_History ofHuman Marriage_" shows that in the early tribe there was no inhibitionagainst the marriage of blood relations; that the restriction then wasagainst the members of the tribe that used one tent; these might ormight not be blood relations. The traditions and folk-ways against themarriage of close relations grew from the familiarity that came from theliving together of brother and sister, for instance, in one home. Thisfeeling gradually worked itself into custom and habit and from that intofolk-ways and laws. Sometimes we read accounts of the marriage of a manand woman who found, after years had gone by, that they were brother andsister who had been separated in infancy and grew up without knowledgeof their relation to each other. Whether Nature forbids the marriage ofrelatives by preventing offspring or by producing imperfect offspring isa doubtful question. Certain communities in Europe have lived togetherso long that all are related and still they seem to thrive. Consideringthe general custom and feeling on the subject, however, the man andwoman who know that they are closely related and who marry are differentand weaker than the others; and this may show in their offspring.Although the subnormal may have no such feeling, they are judged by thetraditions and customs of the normal and on that judgment are sent toprison.

Many sex crimes are charged to children in the adolescent age; childrenwho have no knowledge of sex and its development and are helpless in thestrength of their newly-discovered feelings. This class of offenders isalmost always the inferior and the poor who are moved by stronginstincts which they have not the natural feeling, the strength, theeducation, nor the desire to withstand.

While most crimes against persons are not directly due to economiccauses, still the indirect effect of property is generally present inthese crimes as well as others. The fact that the poor and defective aregenerally the subjects of prosecution and conviction in these offencesshows how closely economic conditions are related to all crimes.

Other criminal statutes are of more modern date, and as a rule involvenot much more than adultery, except in regard to the age of the girloffender, which is generally placed below eighteen. Still the sex age ofneither boys nor girls can be fixed by a calendar. It depends reallyupon development, which is not the same with all people or in allenvironments. Many girls of sixteen are more mature and have moreexperience of life than others of twenty. Most laws provide that belowsixteen one cannot give consent and that a sexual act is then rape. Itis doubtful if there should be any intermediate age between sixteen andeighteen, where an act is not rape but still a minor offence.

XII

ROBBERY AND BURGLARY

Robbery and burglary are generally counted as crimes of violence, butthey should be properly classed under property crimes. Every motive thatleads to getting property in illegal ways applies to these crimes. Thereis added to the regular causes of property crimes the element of dangerand adventure which makes a strong appeal to boys and men. I am inclinedto think that few mature men have committed one of these crimes, unlessthey began criminal careers as boys. Such crimes especially appeal tothe activity and love of adventure which inhere in every boy. They arecommitted for the most part by youths who have had almost no chance toget the needed sport and physical experience incident to boyhood. Thefoot-ball, base-ball, polo or golf player very seldom becomes a robberor a burglar. Almost no rich man or rich man's son becomes a robber or aburglar. Those who fall under this lure are mainly the denizens of thestreets, the railroad yards, the vacant lots, the casual workers who arestimulated by a variety of conditions to get property unlawfully. Addedto this are almost invariably a defective heredity, vicious environment,little education, and a total want of direction in the building up ofhabits and inhibitions.

The robber or burglar who kills in the commission of crime is moredangerous and harder to cure than the one who kills from passion ormalice. There is always the element of an occupation, for gettingproperty, and generally a love of adventure that is difficult toovercome, except by a substantial change of social relations which makesacquiring property easier for the class from which all these criminalsdevelop. The murder that comes from passion and feeling impliessituations and circumstances that are rarely strong enough to overcomethe restrictions against killing.

XIII

MAN AS A PREDATORY ANIMAL

Not less than eighty per cent of all crimes are property crimes, and itseems probable that, of the rest, most arise from the same motives. Ifwe look at civilization as the result of that seesaw trend of the racefrom "Naturalism to Artificialism," we may get a flexible view of lifethat will be in accordance with the facts, and will help us to get ridof the arbitrary division of man's history into the three periods termedSavagery, Barbarism and Civilization. However desirable this divisionmay be for historic purposes in general, it is only confusing in aneffort to study the nature of man.

In the life and origin of the race, the fact is always evidenced thatthe Ego through its growth and persistence is always drawing to itselffrom the current of environment all things which it feels desirable toits life and growth. This must be a necessary condition of survival. Inthe long journey from amoeba to man, any circumstance causing a completehalt for even a brief period meant extinction, while even a persistentinterference produced a weakened organism, if not an arrest ofdevelopment.

This then is the origin of the "Master Instinct," hunger. When weconsider the various emotions growing from the force of this vital urge,as developed by adaptation to an ever-changing environment, we are ableto realize fully why it bulks so large in moulding and shaping thedestiny of the race.

All psychologists are agreed in classing under the nutritive instinctsuch activities as acquisition, storing and hoarding. During a periodvariously estimated as a quarter of a million to two million years, manand his animal antecedents responded to the hunger instinct, in themanner and by the same methods as did the various jungle animals. Hesecured his prey by capture, or killed it wherever found, the onecondition being his power to get and to hold. Later tribal organizationarose, and food and shelter were held in common. But since the folk-wayscommended raiding and looting between alien tribes, here was presentedan alluring chance to secure both booty and glory to men trained in the"get and hold" process of acquiring. For thousands of years life itselfdepended upon this unerring exercise.

It was during the period outlined that man developed his big brain(cerebrum) involving the central nervous system. Furthermore, it wasdeveloped by, and trained to, these particular reactions. Thefar-reaching control of the mind must be remembered, as upon thisthrough his racial heritage must be based his conflicting impulses.These must be reckoned with in our conclusions with regard topresent-day behavior, economic or otherwise.

During the last thirty years, psychological laboratories, aided byphysiology, through oft-repeated experiments conducted withnewly-invented weighing and measuring instruments of marvelous accuracy,have put us in possession of an array of facts unknown to students ofearlier periods, who sought the "why and the how" of man's erraticactions as a social animal. It is constantly being demonstrated thatunder given conditions, moved by appropriate stimuli, the human animalinevitably and surely reacts the same as does inorganic matter. If weunderstand "intelligence" to be the "capacity to respond to newconditions," we can measurably see and at least partly understand theconstant inter-play of heredity and environment. Between these there isno antagonism. The sum of life experiences consists solely in theadjustments required to enable the sentient organism--man or beast--tolive.

How readily a "throw-back" to earlier and cruder life may be broughtabout under favorable conditions, is shown by the methods and virulenceof combat during the vicious massacre in the war just ended. Can theconclusion be evaded that individually and collectively we constantlyteeter on the brink of a precipice? If we fall it spells crime ormisfortune, or both.

Wherever civilization exists on the private property basis as its mainbulwark, we find crime as an inseparable result. Man, by virtue of hisorganic nature, is a predatory animal. This does not mean that he is avicious animal. It simply means that man, in common with the eagle andthe wolf, acts in accordance with the all-impelling urge and fundamentalinstincts of his organic structure. In any conflict between newer andnobler sentiments and the emotions which function through the primevalinstincts, he is shackled to the bed-rock master instincts in suchmanner that they usually win. This is conclusively shown by the historyof the race.

If this is true, we should expect to find the master hunger speciallyactive through the many chances presented for exploitation after thefall of feudalism--beginning, let us assume, with the invention of powermachinery--the "Age of Steam". It is apparent that from that time to ourown day, man's acquisitive tendency has so expanded, that if we werecapable of an unbiased opinion it might be said to be a form ofmegalomania gripping the entire white race, where highly-developedcommerce and industry are found in their most vigorous forms.

If our theory is correct, we should expect to find the most energeticand enterprising nations showing a greater ratio of property crimes thanthe invalid and feeble nations. This would more certainly be true wherepolitical constitutions by letter and spirit encourage and promoteindividual development, mental and industrial. When this conditionexists with abundant natural resources, such as often may be found inwhat we term a new country, it furnishes the chance for the mostvigorous functioning of whatsoever may be the dominant qualitiesinherent in the tendencies and aspirations of a people. The UnitedStates of America, among the nations, meets these conditions, and wefind here the highest ratio of property crimes per capita. This holds asto all such crimes, both minor and major, which are far in excess ofthose of any other nation, as shown by statistics.

It seems clear that this explanation shows the main reason for theseemingly abnormal number of property crimes in the United States.

Man's infinitely long past developed the hunger instinct, which made himtake directly and simply where he could and as he could. This is alwaysurging him to supply his wants in the simplest way, regardless of thelater restrictions that modern civilization has placed around thegetting of property. With the weaker intellectually and physically,these instincts are all-controlling. The superficial and absurd theoriesthat his excesses are due to the lack of the certainty of punishmenttake no account of the life experience, and the inherent structure ofman.

Especially in our large cities with their great opportunities for thecreation and accumulation of wealth, the "lust of power" is shown by thenerve-racking efforts to obtain wealth by the most reckless methods. Theemotion drives us to spend extravagantly and conspicuously, that we mayinspire the envy of our neighbors by our money and power.

This is an old emotion securing a new outlet, and tenfold magnified inforce, through modern conditions in commercial and industrial life. Isit not plain that in America it has assumed the form of an obsession,biting us high and low, until we reek of it? It is likewise clear thatit is a menace to any abiding peace and welfare; that it is stillgrowing and leaving a bitter harvest of neurasthenics in its wake.

The criminologist must face the fact that, in spite of contrarypretenses by most of our social doctors, we are still in our work-a-daylife guided almost exclusively by the mores--the folk-ways ofold--founded on expediency as revealed by experiences, and acquired bythe only known process, that of trial and error. If this be true, itclearly follows that in order to conserve any vestige of a civilization,we must realize the fact that property crimes are the normal results ofthe complex activities making up the treadmill called civilization. Wemust likewise realize that to modify these crimes we must modify thetrend of the race.

When the seamy side of man's behavior is scrutinized by science, itcannot be other than grim and distressing to the reader. It is this tothe writer. But all the really significant facts of life are grim andoften repulsive in the material presented. To the "irony of facts" mustbe ascribed the shadows as well as the high lights. No distortions orspeculations can influence the findings of science. They are accessibleand can be checked up by any one sufficiently interested. The studentknows that man is what he is, because of his origin and long and painfulpast.

XIV

CRIMES AGAINST PROPERTY

By far the largest class of crimes may be called crimes againstproperty. Strictly speaking, these are crimes in relation to theownership of property; criminal ways of depriving the lawful owner ofits possession.

Many writers claim that nearly all crime is caused by economicconditions, or in other words that poverty is practically the wholecause of crime. Endless statistics have been gathered on this subjectwhich seem to show conclusively that property crimes are largely theresult of the unequal distribution of wealth. But crime of any classcannot safely be ascribed to a single cause. Life is too complex,heredity is too variant and imperfect, too many separate thingscontribute to human behavior, to make it possible to trace all actionsto a single cause. No one familiar with courts and prisons can fail toobserve the close relation between poverty and crime. All lawyers knowthat the practice of criminal law is a poor business. Most lawyers ofability refuse such practice because it offers no financial rewards.Nearly all the inmates of penal institutions are without money. This istrue of almost all men who are placed on trial. Broad generalizationshave been made from statistics gathered for at least seventy-five years.It has been noted in every civilized country that the number of propertycrimes materially increases in the cold months and diminishes in thespring, summer and early autumn. The obvious cause is that employment isless regular in the winter time, expenses of living are higher, idleworkers are more numerous, wages are lower, and, in short, it is harderfor the poor to live. Most men and women spend their whole lives closeto the line of want; they have little or nothing laid by. Sickness, hardluck, or lack of work makes them penniless and desperate. This drivesmany over the uncertain line between lawful and unlawful conduct andthey land in jail. There are more crimes committed in hard times than ingood times. When wages are comparatively high and work is steady fewermen enter the extra-hazardous occupation of crime. Strikes, lockouts,panics and the like always leave their list of unfortunates in theprisons. Every lawyer engaged in criminal practice has noticed the largenumbers of prosecutions and convictions for all sorts of offences thatfollow in the wake of strikes and lockouts.

The cost of living has also had a direct effect on crime. Long ago,Buckle, in his "_History of Civilization_," collected statisticsshowing that crime rose and fell in direct ratio to the price of food.The life, health and conduct of animals are directly dependent upon thefood supply. When the pasture is poor cattle jump the fences. When foodis scarce in the mountains and woods the deer come down to the farms andvillages. And the same general laws that affect all other animal lifeaffect men. When men are in want, or even when their standard of livingis falling, they will take means to get food or its equivalent that theywould not think of adopting except from need. This is doubly true when afamily is dependent for its daily bread upon its own efforts.

Always bearing in mind that most criminals are men whose equipment andsurroundings have made it difficult for them to make the adjustments toenvironment necessary for success in life, we may easily see how anyincrease of difficulties will lead to crime. Most men are not wellprepared for life. Even in the daily matter of the way to spend theirmoney, they lack the judgment necessary to get the most from what theyhave. As families increase, debts increase, until many a man findshimself in a net of difficulties with no way out but crime. Men whosenecessities have led them to embezzlement and larceny turn up soregularly that they hardly attract attention. Neither does punishmentseem to deter others from following the same path although the dangerof detection, disgrace and prison is perfectly clear.

Sometimes, of course, men of education and apparent lack of physicaldefect commit property crimes. Bankers often take money on deposit afterthe bank is insolvent. Not infrequently they forge notes to cover lossesand in various ways manipulate funds to prevent the discovery ofinsolvency. As a rule the condition of the bank is brought about by theuse of funds for speculation, with the intention of repaying from whatseems to be a safe venture. Sometimes it comes through bad loans andunforeseen conditions. Business men and bankers frequently shock theirfriends and the community by suicide, on disclosures showing they haveembezzled money to use on some financial venture that came to adisastrous end.

These cases are not difficult to understand. The love of money is thecontrolling emotion of the age. Just as religion, war, learning,invention and discovery have been the moving passions of former ages, sonow the accumulation of large fortunes is the main object that movesman. It does not follow that this phase will not pass away and giveplace to something more worth while, but while it lasts it will claimits victims, just as other strong emotions in turn have done. The fearof poverty, especially by those who have known something of the value ofmoney, the desire for the power that money brings, the envy of others,the opportunities that seem easy, all these feelings are too strong formany fairly good "machines," and bring disaster when plans go wrong.

Only a small portion of those who have speculated with trust funds areever prosecuted. Generally the speculation is successful or at leastcovered up. Many men prefer to take a chance of disgrace or punishmentor death rather than remain poor. These are not necessarily dishonest orbad. They may be more venturesome, or more unfortunate; at any rate, itis obvious that the passion for money, the chance to get it, the dreadof poverty, the love of wealth and power were too strong for theirequipment, otherwise the pressure would have been resisted. The samepressure on some other man would not have brought disaster.

The restrictions placed around the accumulation of property aremultiplying faster than any other portions of the criminal code. Ittakes a long time for new customs or habits or restraints to become apart of the life and consciousness of man so that the mere suggestion ofthe act causes the reaction that doing it is wrong. No matter how longsome statutes are on the books, and how severe the penalties, many mennever believe that doing the forbidden act is really a crime. Forinstance, the violations of many revenue laws, game laws, prohibitionlaws, and many laws against various means of getting property are oftenconsidered as not really criminal. In fact, a large and probably growingclass of men disputes the justice of creating many legal rules inreference to private property.

Primitive peoples, as a rule, held property in common. Their inhibitionswere few and simple. They took what they needed and wanted in theeasiest way. There is a strong call in all life to hark back toprimitive feelings, customs and habits. Many new laws are especiallypainful and difficult to a large class of weak men who form the bulk ofour criminal class.

To understand the constant urge to throw off the shackles ofcivilization, one need but think of the number of men who use liquor ordrugs. One need only look at the professional and business man, who atevery opportunity leaves civilization and goes to the woods to kill wildanimals or to the lakes and streams to fish.

The call to live a simple life, free from the conventions, customs andrules, to kill for the sake of killing, to get to the woods and streamsand away from brick buildings and stone walls, is strong in theconstitution of almost every man. Probably the underlying cause of theworld war was the need of man to relax from the hard and growing strainof the civilization that is continually weaving new fetters to bindhim. There must always come a breaking point, for, after all, man is ananimal and can live only from and by the primitive things.

Children have no idea of the rights of property. It takes long andpatient teaching, even to the most intelligent, to make them feel thatthere is a point at which the taking of property is wrong. Nowhere inNature can we see an analogy to our property rights. Plants and animalsalike get their sustenance where and how they can. It is not meant hereto discuss the question of how many of the restrictions that control thegetting of property are wise and how many are foolish; it is only meantto give the facts as they affect life and conduct.

It is certainly true that the child learns very slowly and veryimperfectly to distinguish the ways by which he may and may not getproperty. His nature always protests against it as he goes along. Only afew can ever learn it in anything like completeness. Many men cannotlearn it, and if they learned the forbidden things they would have nofeeling that to disobey was wrong. Even the most intelligent ones neverknow or feel the whole code, and in fact, lawyers are forever debatingand judges doubting as to whether many ways of getting property areinside or outside the law. No doubt many of the methods that intelligentand respected men adopt for getting property have more inherentcriminality than others that are directly forbidden by the law. It mustalways be remembered that all laws are naturally and inevitably evolvedby the strongest force in a community, and in the last analysis made forthe protection of the dominant class.

XV

ATTITUDE OF THE CRIMINAL

Probably the chief barrier to the commission of crime is the feeling ofright and wrong connected with the doing or not doing of particularacts. All men have a more or less binding conscience. This is the resultof long teaching and habit in matters of conduct. Most people are taughtat home and in school that certain things are right and that others arewrong. This constant instruction builds up habits and rules of conduct,and it is mainly upon these that society depends for the behavior of itscitizens. To most men conscience is the monitor, rather than law. Itacts more automatically, and a shock to the conscience is far moreeffective than the knowledge that a law is broken. For the most part thepromptings of conscience follow pretty closely the inhibitions of thecriminal code, although they may or may not follow the spirit of thelaw. Each person has his own idea of the relative values attached tohuman actions. That is, no two machines respond exactly alike as to therelative importance of different things. No two ethical commands havethe same importance to all people or to any two people. Often men donot hesitate to circumvent or violate one statute, when they could neverbe even tempted to violate another.

Ordinarily unless the response of conscience is quick and plain, men arenot bothered by the infraction of the law except, perchance, by the fearof discovery. This is quite apart from the teaching that it is the dutyof all men to obey all laws, a proposition so general that it has noeffect. Even those who make the statement do not follow the precept, andthe long list of penal laws that die from lack of enforcement instead ofby repeal is too well known to warrant the belief that anyone paysserious attention to such a purely academic statement. No one believesin the enforcement of all laws or the duty to obey all laws, and no one,in fact, does obey them all. Those who proclaim the loudest the duty ofobedience to all laws never obey, for example, the revenue laws. Theseare clear and explicit, and yet men take every means possible to havetheir property exempted from taxation--in other words, to defraud theState. This is done on the excuse that everyone else does it, and theman who makes a strict return according to law would pay the taxes ofthe shirkers. While this is true, it simply shows that all men violatethe law when the justification seems sufficient to them. The lawsagainst blasphemy, against Sunday work and Sunday play, against buyingand transporting intoxicating liquors and smuggling goods are freelyviolated. Many laws are so recent that they have not grown to befolk-ways or fixed new habits, and their violation brings no moralshock. In spite of the professions often made, most men have a pooropinion of congressmen and legislators, and feel that their ownconscience is a much higher guide for them than the law.

Religions have always taught obedience to God or to what takes Hisplace. Religious commands and feelings, are higher and more binding onman than human law. The captains of industry are forever belittling andcriticising all those laws made by legislatures and courts whichinterfere with the unrestricted use of property. None of this sort oflegislation has their approval and the courts are regarded as meddlesomewhen they enforce it. The anti-trust laws, the anti-pooling laws,factory legislation of all kinds, anything in short that interferes withthe unrestricted use of property by its owner are roundly condemned andviolated by evasion. On the other hand, so much has been written andsaid in reference to the creation of the fundamental rights to ownproperty, and these rights depend so absolutely upon social arrangementsand work out such manifest injustice and inequality, that there isalways a deep-seated feeling of protest against many of our so-calledproperty laws. From those who advocate a new distribution of wealth andcondemn the injustice of present property rights, the step is quiteshort to those who feel the injustice and put their ideas in force bytaking property when and where they are able to get it.

For instance, a miner may believe that the corporation for which heworks really has no right to the gold down in the mine. As he is digginghe strikes a particularly rich pocket of high-grade ore. He feels thathe does no wrong if he appropriates the ore. Elaborate means are takento prevent this, even compelling the absolute stripping of the workman,and a complete change of clothes on going in and coming out of the mine.

Many laws are put on the books which are of a purely sumptuary nature;these attempt to control what one shall do in his own personal affairs.Such laws are brought about by organizations with a "purpose". Themembers are anxious to make everyone else conform to their ideas andhabits. Such laws as Sunday laws, liquor laws and the like are examples.Then, too, every state or nation carries a large list of laws that menhave so long violated and ignored, that they virtually are dead. Toviolate these brings no feeling of wrong, but only serves to make mendoubt the evil of violating any law.

It is never easy to get a Legislature to repeal a law. Generally someorganization or committee of people is interested in keeping it alive,and the members of the Legislature fear losing their votes. Social ideasare always changing. No laws or customs are eternal. The ordinary man,and especially the man under the normal, cannot keep up with all theshifting of a changing world. There is always a fraction of a communityagitating for something new and gradually forcing the Legislature to putit into law, even against the will of the majority and against thesentiment of a large class of the community. The organization that wantssomething done is always aggressive. The man who wants to prevent itfrom being done is seldom unduly active or even alarmed. Manyorganizations are eager to get statutes on the books. One seldom hearsof a society or club that is active in getting laws repealed. Theconstant change of law, the constant fixing of new values in place ofold ones, is necessary to social life. This means putting new wine intoold bottles, and wine that is much too strong for the bottles. Everybodycan see why some particular law might be violated without a sense ofguilt, but they cannot see how a law they believe in can be violatedwithout serious obliquity.

Apart from this, there have always been crimes that were not of theclass that implied moral wrong. The acts of the revolutionist who saw,or thought he saw, visions of something better; the man who is inspiredby the love of his fellow-man and who has no personal ends to gain; theman who in his devotion to an idea or a person risks his life or libertyor property or reputation, has never been classed with those who violatethe law for selfish ends. The line of revolutionists, from the beginningof organized government down to the birth of the United States and evento the present time, furnishes ample proof of this. And still theunsuccessful revolutionist meets with the severest penalties. To himfailure generally means death. Men who are fired with zeal for all newcauses are forever running foul of the law. Social organization, likebiological organization, is conservative. All things that live areimbued with the will to live and they take all means in their power togo on living. The philosopher can neither quarrel with the idealist whomakes the sacrifice nor the organization that preserves itself while itcan; he only recognizes what is true.

Men have always been obliged to fight to preserve liberty. Constitutionsand laws do not safeguard liberty. It can be preserved only by atolerant people, and this means eternal conflict. Emerson said that thegood citizen must not be over-obedient to law. Freedom is alwaystrampled on in times of stress. The United States suffered seriousencroachments on liberty during the Civil War. During the last war,these encroachments were greater than any American could have possiblydreamed; and so far there seems little immediate chance for change.Still the philosopher does not complain. He sees human passion for whatit is, a great emotion that holds men in its grasp, a feeling thatnothing can stand against. Opposition is destroyed by force, and oftenblind, cruel, unreasoning force. Sometimes even worse, this force iscreated for selfish ends. There are always those who will use thestrongest and highest emotions of men to serve their private, sordidends. Changing social systems, new political ideas, the labor cause, allmovements for religious, social or political change have their zealots;they are met by the force of convention and conservatism ready to defenditself, and the clash is inevitable. It is easy to distinguish this sortof action from the things done by those who are known as criminals.Their acts are done to serve personal ends. Society may always punishboth, but all men of right ideas will understand that the motive isdifferent, the equipment and capacity of the men are different, and theyare only in the same class because they each violate the law and areeach responsive to emotions and to feelings that are of sufficientstrength to compel action.

XVI

THE LAW AND THE CRIMINAL

If one were ill with a specific disease and he were sent to a hospital,every person who touched him, from the time his disease was known untilhe was discharged, would use all possible effort to bring him back tohealth. Physiology and psychology alike would be used to effect a cure.Not only would he be given surroundings for regaining health and amplephysical treatment, but he would be helped by appeals in the way ofpraise and encouragement, even to the extent of downright falsehoodabout his condition, to aid in his recovery.

If such is done of "disease," why not of "crime"? Not only is it clearthat crime is a disease whose root is in heredity and environment, butit is clear that with most men, at least when young, by improvingenvironment or adding to knowledge and experience, it is curable. Stillwith the unfortunate accused of crimes or misdemeanors, from the momentthe attention of the officers is drawn to him until his finaldestruction, everything is done to prevent his recovery and to aggravateand make fatal his disease.

The young boy of the congested districts, who tries to indulge hisnormal impulses for play, is driven from every vacant lot; he isforbidden normal activity by the police; he has no place of his own; hegrows to regard all officers as his enemies instead of his friends; heis taken into court, where the most well-meaning judge lectures himabout his duties to his parents and threatens him with the dire evilsthat the future holds in store for him, unless he reforms. If he isreleased, nothing is done by society to give him a better environmentwhere he can succeed. He is turned out with his old comrades and intohis old life, and is then supposed by strength of will to overcome thesesurroundings, a thing which can be done by no person, however strong hemay be.

For the graver things, the boy or man is taken to the police station.There he is photographed and his name and family record taken down evenbefore he has had a hearing or a trial. He is handled by officers whomay do the best they can, but who by training and experience and forlack of time and facilities are not fitted for their importantpositions. I say this in spite of the fact that my experience has taughtme that policemen, as a rule, are kindly and human. From the policestation the offender is lodged in jail. Here is huddled together a greatmass of human wreckage, a large part of it being the product ofimperfect heredities acted upon by impossible environments. Howevershort the time he stays, and however wide his experience, the firstoffender learns things he never knew before, and takes another degree inthe life that an evil destiny has prepared for him. In the jail he isfed much like the animals in the zoo. In many prisons the jailer ismaking what money he can by the amount he can save on each prisoner hefeeds above the rate the law allows of twenty-five or fifty cents a day.In a short time the prisoner's misery and grief turn to bitterness andhate; hatred of jailer, of officers, of society, of existing things, ofthe fate that overshadows his life. There is only one thing that offershim opportunity and that is a life of crime. He is indicted andprosecuted. The prosecuting attorney is equipped with money and providedwith ample detectives and assistants to make it impossible for theprisoner to escape. Everyone believes him guilty from the time of hisarrest. The black marks of his life have been recorded at schools, inpolice stations and examining courts. The good marks are not there andwould not be competent evidence if they were. Theoretically the State'sAttorney is as much bound to protect him as to prosecute him, but theState's Attorney has the psychology that leads to a belief of guilt, andwhen he forms that belief his duty follows, which is to land the victimin prison. It is not only his duty to land him in jail, but the officeof the State's Attorney is usually a stepping-stone to something else,and he must make a record and be talked about. The public is interestedonly in sending bad folks to jail.

No doubt there are very few State's Attorneys who would knowinglyprosecute unless they believed a man guilty of the offense, but it iseasy for a State's Attorney to believe in guilt. Every man's daily lifeis largely made up of acts from which a presumption of either guilt orinnocence can be inferred, depending upon the attitude of the one whodraws the inference.

To a State's Attorney or his assistants the case is one that he shouldwin. All cases should be won. Even though he means to be fair, hispsychology is to win. No lawyer interested in a result can be fair. Thelawyer is an advocate trying to show that his side is right and tryingto win the case. The fact that he represents the State makes nodifference in his psychology. In fact, he always tells the jury that herepresents the State and is as much interested in protecting thedefendant as in protecting society. He does this so that the jury willgive his statements more weight than the statements of the lawyer forthe defense, and this very remark gives him an advantage that is neitherfair nor right.

The man on trial is almost always poor. It is only rarely that a poorman can get a competent lawyer to take his case. He is often handed overto the court for the appointment of a lawyer. The lawyer has no time ormoney to prepare a defense. As a rule he is a beginner not fitted forhis job. If he wishes to take the case, he wants it only for theexperience and advertising that it will bring. He is handed a case toexperiment on, just as a medical student is handed a cadaver to dissect.If the defendant is in jail, he has little chance to prepare his case.If the defendant had any money he would not know what to do with it. Heis often a mentally defective person. His friends are of the same classand can do little to help him. The jury are told that they must presumehim innocent, but the accusation alone carries with it the presumptionof guilt, which extends to everyone connected with the case, even to thelawyer appointed to defend him. It is almost a miracle if the defendantis not convicted.

Perhaps he is taken out to be hanged--the last act that society can dofor him, or the convicted man is sent to prison for a long or shorterterm. His head is shaved and he is placed in prison garb; he iscarefully measured and photographed in his prison clothes, so that ifhe should ever get back to the world he will forever be under suspicion.Even a change of name cannot help him. While in prison he works andlives under lock and key, like a wild animal, eager to escape. Oncertain days he is allowed to sit at a long table with otherunfortunates like himself, and visit for an hour with mother or fatheror wife or son or daughter or friend on the other side. Other prisoners,so far as he can associate with them, are as helpless and hopeless andrebellious as he. How they will get out, and when, are their chiefconcerns. Many of their guards are very humane. Probably no one seeks totorture him, but the system and the psychology are fatal. He sees almostno one who approaches him with friendship and trust and a desire tohelp, except his family, his closest friends and his companions inmisery. He knows that the length of his term is entirely dependent uponofficials whom he cannot see or make understand his case. He snatches atthe slightest ray of hope. He is in despair from the beginning to theend. No prison has the trained men who, with intelligence and sympathy,should know and watch and help him in his plight. No state would spendthe money necessary to employ enough attendants and aids with thelearning and skill necessary to build him up. Money is freely spent onthe prosecution from the beginning to the end, but no effort is made tohelp or save. The motto of the state is: "Millions for offense, but notone cent for reclamation."

As all things end, prison sentences are generally finished. The prisoneris given a new suit of clothes that betrays its origin and will beuseless after the first rain, ten dollars in cash, and he goes out. Hisheredity and his hard environment have put him in. Now the state is donewith him; he is free. But there is only one place to go. Like any otherreleased animal, he takes the same heredity back to the old environment.What else can he do? His old companions are the only ones who will givehim social intercourse, which he needs first of all, and the only oneswho understand him. They are the only ones who will be glad to see himand help him get a job. There is only one profession for which he isbetter fitted after he comes out than he was before he went in, and thatis a life of crime. Of course, he is a marked man and a watched man withthe police. When a crime is committed and the offender is not found, theex-convict is rounded up with others of his class to see, perchance, ifhe is not the offender that is wanted. He is taken to the lock-up andshown with others to the witnesses for identification. Before this, thewitness may have been shown his photograph in convict clothes. Perhapsthey identify him, perhaps they do not; if identified, he may be theman or he may not be. Anyhow, he has been in prison and this is againsthim. Whenever he comes out and wherever he goes, his record follows himas closely as his shadow. Even his friends suspect him. They suspect himeven when they help him.

Such is the daily life of these unfortunates. What can be done? I cansee nothing that the officers of the law can do. Officers represent thepeople. They reflect mob psychology. Even though an officer here andthere rises above the crowd, as he sometimes does, it is of no avail.His place soon is filled by someone else. If only the public wouldunderstand! If only the public were more intelligent, which in this caseat least would mean more human! If only the statement I repeat so oftencould be understood! There are no accidents; everything is the result oflaw. All phenomena are a succession of causes and effects. The criminalis the result of all that went before him and all that surrounds him.Like every other mortal, he is a subject for pity and not for hatred. Ifsociety is not safe while he is at large, he must be confined and keptunder guard and observation. He must be kept until he is safe and afavorable environment found for him. If he will never be safe forsociety, he should never be released. He must not be humiliated, made tosuffer unduly, despised or harried. He must be helped if he can behelped. This should be the second, if not the first object of hisconfinement.

Assuming that the scientific attitude toward crime should be accepted bythose who make public opinion, and that this should become crystallizedinto written law, the problem would be easy.

The officers of the state can, as a rule, be depended upon to dealproperly and considerately with the known insane. The insane are moretrying and difficult than the criminal. Courts and juries and thepublic, however, recognize their mental condition and do not visit themwith vengeance. It is appreciated and understood that they cannot withsafety be left at large; but they are given the care and considerationthat their condition demands. If the criminal should be looked upon asare the creatures insane from natural causes, the State's Attorney couldthen be trusted to prepare the case and do the best he could for allconcerned. The defendant would no longer be a defendant. His case wouldbe under investigation; his past life would be shown, his credits aswell as his debits; he would need no lawyer, not even a public defender;no jury would be required, and the uncertainties and doubts that hangaround judgments would be removed. There would be little chance for amiscarriage of justice. Even should there be, it would result in thespeedy release of one against whom the public bore no ill-will. One whowas sick or insane would ordinarily not need a lawyer, as the statewould bear him no malice and make no effort to do more than investigatethe case and present the facts. The whole matter should be a purelyscientific attempt to find out the best thing to be done both for theinterest of the public and the interest of the man.

No doubt, in many cases, men are convicted who are perfectly innocent ofthe crime of which they are accused. This is especially true with thepoor who can provide for no adequate defense and who perhaps have beenconvicted before of some misdemeanor or crime. This is also often truein cases where there is great prejudice against the defendant, either onaccount of the nature of the case or of the defendant on trial. Forinstance, during the recent war a wave of hysteria swept over the world,and courts and juries trampled on individual rights and freely violatedthe spirit of laws and constitutions. The close of the war left the sameintense feelings of bitterness which made justice impossible in caseswhere the charge savored of treason, and involved criticism of thegovernment, or advocacy of a change of political systems.

Questions of race, religion, politics, labor and the like have alwaysawakened violent feelings on all sides, have made bitter partisans andstrict lines of cleavage, and have made verdicts of juries andjudgments of courts the result of fear and hatred. In spite of this,most of the inmates of prisons have done the acts charged in theindictments. Why they did them, their states of mind, the conditions andcircumstances surrounding them, what can be done to make them strongerand better able to meet life are never ascertained, and few courts orjuries have ever deemed these things proper subjects for considerationor in any way involved in the case.

In law every crime consists of two things: an act and an intent. Bothare necessary to constitute legal guilt, and on the prevalent theory ofmoral guilt and punishment both are necessary to make up criminalconduct. There can be no legal or moral guilt unless one intendswickedness; unless he deliberately does the act because he wishes to dowrong and knows he does wrong. The question then of moral guilt, whichis necessary to the commission of a criminal act, touches all thequestions suggested and many more. Even if freedom of action is to somedegree assumed, the question still remains as to the degree of guilt infixing punishment and responsibility. The question involves the make-upof the man, his full heredity, so far as it can be known.

Most of every man's heredity is hidden in the mist and darkness of thepast. He inherits more or less directly through an infinite number ofancestors, reaching back to primitive man and even to the animals fromwhich he came. The remote ancestry is, of course, usually not soimportant as that immediately behind him. Still, plainly, his form andstructure and the details of his whole machine, including themarvelously delicate mechanism of the brain and nervous system, areheritages of the very ancient past. Neither are the processes ofinheritance well understood nor subject to much control. Often in themaking of the man Nature resorts to some "throw-back" which reproducesthe ancient heritage. This can be seen only in general resemblances andbehavior, for the genealogical tree of any family is very short and veryimperfectly known, and the poor have no past. In three or fourgenerations at the most the backward trail is lost and his family mergedwith the species of which he forms but a humble part.

Enough, however, is known of ancestry and the infinite marks ofinheritance on every structure as well as enough of the reaction of thehuman machine to the varied environment that surrounds it, to make itclear that if one were all-seeing and all-wise he could account inadvance for every action of every man. More than this, he could see inthe original, fertilized cell, all its powers, defects andpotentialities and could, in the same manner, look down through theshort years during which the human organism, grown from the cell, shallhave life and movement, and could see its varied environment. If onecould see this with infinite wisdom, he could infallibly tell in advanceeach step that the machine would take and infallibly predict the timeand method of its dissolution. To be all-knowing is to beall-understanding, and this is infinitely better than to beall-forgiving.

To get this knowledge of the past of each machine is the duty and workof the tribunal that passes on the fate of a man. It can be done onlyimperfectly at best. The law furnishes no means of making thesejudgments. All it furnishes is a tribunal where the contending lawyerscan fight, not for justice, but to win. It is little better than the oldwager of battle where the parties hired fighters and the issue wassettled with swords. Oftentimes the only question settled in court isthe relative strength and cunning of the lawyers. The tribunal whoseduty it is to fix the future place and status of its fellowmen should bewise, learned, scientific, patient and humane. It should take the timeand make its own investigation, and it can be well done in no other way.When public opinion accepts the belief that punishment is only cruelty,that conduct is a result of causes, and that there is no such thing asmoral guilt, investigations and sorting and placing of the unfortunatecan be done fairly well. The mistakes will be very few and easilycorrected when discovered. There will be no cruelty and suffering. Thecommunity will be protected and the individual saved.

Neither will this task be so great as it might seem at first glance.Trials would probably be much shorter than the endless, senselessbickering in courts, the long time wasted in selecting juries and themany irrelevant issues on which guilt or innocence are often determined,make necessary now. Most of the criminal cases would likewise beprevented if the state would undertake to improve the general social andeconomic condition of those who get the least. Only a fraction of themoney spent in human destruction, in war and out, would give aneducation adapted to the individual, even to the most defective. Itwould make life easy by making the environment easy. Only a few of thedefective, physically and mentally, would be left for courts to place inan environment where both they and society could live. Perhaps some timethis work will be seriously taken up. Until then, we shall muddle along,fixing and changing and punishing and destroying; we will follow the oldcourse of the ages, which has no purpose, method or end, and leaves onlyinfinite suffering in its path.

XVII

REPEALING LAWS

It is comparatively easy to get a penal statute on the books. It is veryhard to get it repealed. Men are lazy and cowardly; politicians look forvotes; members of legislatures and Congress are not so much interestedin finding out what should be done, as they are in finding out what thepublic thinks should be done. Often a law lingers on the books longafter the people, no longer believing the forbidden thing to be wrong,have repealed it. The statute stays, to be used by mischievous peopleand by those who believe in the particular law.

Often the unthinking lay hold of a catch-word or a pet phrase and repeatand write it, as if it were the last word in social science andphilosophy. General Grant, when president, stumbled on such a sillycombination of words, and surface-thinkers have been repeating it eversince, simply because it sounds wise and pat. Grant once said that, "Theway to repeal a bad law is to enforce it." Grant was not a statesman nora philosopher. He was a soldier. He probably heard some one use thisphrase, and it sounded good to him. Out of that has grown the furtherstatement which courts and prosecutors have used to excuse themselvesfor the cruelty of enforcing a law that does violence to the feelings ofthe people. This statement is to the effect that so long as the law ison the books, it is the duty of officers to enforce it. The smallestinvestigation of the philosophy of law shows how silly and reactionarysuch statements are.

One thing should be remembered. Laws really come from the habits,customs and feelings of the people, as interpreted or understood bylegislative bodies. When these habits and customs are old enough theybecome the folk-ways of the people. Legislatures and courts only writethem down. When the folk-ways change the laws change, even though nolegislature or judge has recorded their repeal.

Since Professor Sumner of Yale University wrote his important book,"_Folkways_," there is no excuse for any student not knowing that thisstatement is true. As a matter of fact, no court ever enforced all thewritten laws, or ever would, or ever could. Only a part of the discardedcriminal law is ever repealed by other laws. The rest dies from neglectand lack of use. It is like the rudimentary parts of the human anatomy.Man's body is filled with rudimentary muscles and nerves that, in thepast, served a purpose. These were never removed by operations, but diedfrom disuse. Every criminal code is filled with obsolete laws, some ofthem entirely dead, others in the course of dissolution. They cannot berepealed by statute so long as an active minority insists that theyremain on the books. When the great mass no longer wants them, it isuseless to take the trouble to repeal them. The fugitive slave law wasnever believed in and never obeyed, and it was openly violated anddefied by the great mass of the people of the North. The Fourteenth andFifteenth Amendments to the Federal Constitution, and the statutespassed to enforce them, providing political and civil equality for theblack man, and forbidding discrimination on railroads, in hotels,restaurants, theatres and all public places, have never really been thelaw in any state in the Union. Their provisions have always been openlyviolated and no court would think of enforcing them, for the simplereason that public sentiment is against it. Laws condemning witchcraftand sorcery both in Europe and America did their deadly work and died,for the most part, without repeal. Sabbath laws of all sorts forbiddingwork and play and amusements are dead letters on the statute books ofmost states, in spite of many attempts to galvanize them into life. Allkinds of revenue laws are openly violated. Most tax-payers ofintelligence who own property violate the revenue law openly andnotoriously, and all courts and officers as well as the public know it.Many laws which interfere with the habits, customs and beliefs of alarge number of people, like the prohibition laws, never receive theassent of so large a percentage as to make people conscious of any wrongin violating them, and therefore people break them when they can. Oftenthis class of laws is enforced upon offenders who believe the law is anunwarrantable interference with their rights, and thus causesconvictions where no moral turpitude is felt.

Every new crusade against crime not only sweeps away a large amount ofwork that has been slowly and patiently done toward a rightunderstanding of crime, but likewise puts new statutes on the bookswhich would not be placed there if the public were sane. When it doesnot do this, it increases penalties which work evil in other directionsand awe courts, juries, governors and pardon boards, not only preventingthem from listening to the voice of humanity and justice, but causingthem to deny substantial rights and wreak vengeance and cruelty upon theweak and helpless.

XVIII

IS CRIME INCREASING?

The question is often asked, Is crime increasing? Statistics of allkinds can be gathered on this subject. In the main they seem to showthat crime is on the increase in most civilized countries. It is veryunsafe to use statistics without at the same time considering all thequestions on which conduct rests. An increase of crime, as shown bystatistics, may mean that the records are kept more completely than informer times. It may mean temporary causes like bad times are adding tothe number of arrests and convictions. It may mean new classifications.It may mean that figures are based on arrests instead of convictions. Itmay include misdemeanors with graver offenses. It may or may not includerepeaters. Statistics in any field are useful, but usually for broadgeneralizations, and they must always be interpreted by men ofexperience who are not interested in the results. Still, on the whole,it is probable that statistics show that crime is on the increase. Whathave reason and human experience to say on the subject?

We should always bear in mind that crime can never mean anything exceptthe violation of law, when the violator is convicted; that it has nonecessary reference to the general moral condition of man. Is the numberof criminal convictions growing, and if so why? In the first place, thecriminal code is lengthening every year. When civilized man began makingcriminal codes, there were comparatively few things forbidden. The codeswere largely made up of those acts which, in some form, have for agesbeen generally thought to be criminal. Religious beliefs, customs andhabits were included in the penal statutes. So were such things assorcery and witchcraft. Property was then not an important subject inman's activities. When the instinct to create and accumulate propertybegan to rule life, the criminal code grew very rapidly. Complexbusiness interests, combined with the constantly increasing value placedon property, were always calling for new statutes.

The same tendency, indirectly, demanded still other statutes until atthe present time this class of crimes makes up a large part of thecriminal code and is growing steadily each year. Then too, the necessityof property has called for the violation of this part of the criminalcode more than any other, and it has naturally caused a considerableincrease of crime. Man in his social and political activities is everweaving and bending and twisting back and forth. For a number of yearsthe universal tendency, especially in America, has been toward what iscalled "Social Control", the idea being that more and more people shouldbe controlled in an increasing number of ways. Of course, if people areto be controlled they must be controlled by other people. This policyhas been extended until we are ever pushing further into the regulationof the habits, customs and lives of all the individual members of thecommunity. The majority, when it has the power, has never hesitated toforce its ways of living, its ideas, customs and habits on the minority.The majority, when strong enough, has always assumed that it was right,and provided that others must live its way or not at all. The pendulumis now swinging far this way as is evidenced by prohibition, thepersistent campaign for Sunday laws, and the growing belief in socialcontrol as a means of changing and directing humanity.

This has added to the criminal code and has increased the number of menin prisons. Two statutes of recent date in most of the states areresponsible for a very large increase in the number of convicts. Theconspiracy statute which is used today is a deliberate scheme on thepart of prosecutors to get men into the penitentiary by charging anagreement or confederation of two or more persons to do something,which, if really committed, would be a misdemeanor, or no crimewhatever. Under this charge, whether made specifically or in connectionwith another crime, the rules of evidence have been opened and relaxeduntil the wildest and most remote hearsay is freely admitted for theplain purpose of convicting men who have really been guilty of nospecific act. It is in effect punishing one for his thoughts; thebusiness of the court or jury being to find out whether in someparticular he has an evil mind.

The statute forbidding the use of the "confidence game" in obtainingproperty sends to prison a constant stream of persons who, until a fewyears ago, would have been guilty of no crime. This law, as interpretedby the courts, really means the procuring of money by dishonest means.Under this statute the court and jury hear the evidence and say whetherthe means charged are dishonest or not. This, of course, leaves the lawso that the temporarily prevailing power, perhaps only the prosecutingattorney, may send men to prison who take means of getting money thatare not practiced or at least advocated by the ones who procure thepassage and enforcement of the law.

Numberless ways used by the strong to get money are considered dishonestby a large class of men and women: exaggerated and lying advertisements,forestalling the markets, the acts and wiles of the professionalsalesman, misrepresenting goods and other methods that could never becatalogued because new ways are constantly coming to light. The logicalend of all these indefinite and uncertain laws is to pass one statuteproviding that whoever does wrong shall be imprisoned, _et cetera, etcetera_. The law never can specify all the ways of doing wrong and manyof the meanest and most annoying things have never been, and from thenature of things never can be, prohibited by the statutes. No man is agood citizen, a good neighbor, a good friend, or a good man just becausehe obeys the law. The intrinsic worth is determined mainly by theintrinsic make-up.

Civilization is all the while making it harder for men to keep out ofprison. Especially do the weak and ignorant and poor find thatenvironment is constantly creating more inhibitions as time goes on.While rules and customs are prohibiting more and more ways of gettingproperty, the needs growing out of civilization are always increasing.The simple inexpensive life of the past has given place to a morecomplex way of living, which calls for greater expense and harder work.It has created rivalry and jealousy to get the things that others have,and has placed men in a mad race with each other which often leads tojail or death.

Students of biology are constantly noting the difficulty that hereditaryhuman traits, which have been evolved for simple reactions and plainliving, find in making the necessary adjustments to the extravagantdemands and complicated environment of the present day. This departurefrom the old normal and simple environment, due largely to machinery andcommerce, is not only destroying individual lives by the thousands, butis seriously threatening the whole social fabric.

The creation of new courts, like "Boys' Courts," "Juvenile Courts,""Courts of Domestic Relations," "Moral Courts," with their array of"Social Workers," "Parole Agents," "Watchers," _et cetera,_ shows thegrowth of crime and likewise the hopelessness of present methods to dealeffectively with a great social question. Numbers of people in our bigcities are making their living from the abnormal lives of children.Whether they are doing good or not, or whether their service isunselfish, as much of it doubtless is, are both quite aside from thequestion. The important fact is that the present system brings noresults and that the disease is growing.

Instead of any considerable number of people taking hold of the questionof crime, as physicians have taken hold of disease, and seeking to findits cause and to remove that cause, we content ourselves withprosecuting and punishing and visiting with misery and shame, not onlythe boys and girls, the men and women, who are the victims of life, butthe large number of fathers, mothers, brothers, sisters, sons anddaughters, whose lives are ruined by a catastrophe with which at leastthey had nothing to do. If a doctor were called in to treat a case oftyphoid fever, he would probably find out where the patient got his milksupply and his drinking water and would have the well cleaned out tostop the spread of typhoid fever through infection. A lawyer called totreat the same kind of a case, legally speaking, would give the patientthirty days in jail, thinking that this treatment would effect a cure.If at the end of ten days the patient were cured, he would neverthelessbe kept in prison until his time was out. If at the end of thirty daysthe disease was more infectious than ever, the patient would bedischarged and sent upon his way to spread contagion in his path.

The transgression of organized society in the treatment of crime wouldnot be so great if students and scientists had not long since found thecause of crime. It would be hard to name a single man among all the menof Europe and America who have given their time and thought to thesolution of this problem, who has not come to the conclusion that crimehas a natural origin, and that the criminal for the most part is thevictim of heredity and environment. These students have pointed the wayfor the treatment of the disease, and yet organized government thatspends its millions on prosecutions, reformatories, jails,penitentiaries and the like, has scarcely raised its hand or spent adollar to remove the cause of a disease that brings misery and despairto millions and threatens the destruction of all social organization! Tothe teaching of the student and the recommendations of the humane themob answers back: "Give us more victims, bigger jails, stronger prisons,more scaffolds!"

Not only has the constant multiplication of penal laws helped withoutavail to fill jails, but the failure to repeal laws that are outgrowndoes its part. As already stated, there are many anti-social andannoying things that can be done without violating the law. This, nodoubt, is responsible for some of the general statutes like that aimedat the confidence game that catches a victim when the crime is notclearly defined as in "robbery," "burglary," "larceny" and the like.Still it has been the general opinion of those who have studied crimeand influenced the passage of penal laws, that criminal statutes shouldbe clear and explicit so that all would know what they must not do. Itis obvious that if one is to be punished simply for doing wrong, therecould be no judges or juries or jailers condemning and punishing and nocrowds shouting for vengeance. All do wrong and do it over and overagain, and day by day. It is not only those specific things that thegreat majority think are wrong, but the graver offenses that are meantto be the subject of criminal codes. Of course, codes do not work outthis way in practice. In effect, they forbid the things that thestrongest forces of the community wish forbidden, things which may ormay not be the gravest and most anti-social acts, but which at leastseem to the strong to be most hostile to their interests and rulingemotions.

XIX

MEDICAL EXPERTS

So long as the ordinary ideal of punishment prevails, a crime mustconsist of an act coupled with an intent to do the thing, which probablymeans an intent to do evil. This is no doubt the right interpretation ofintent, although cases can be found, generally of a minor grade, whichhold that evil intent is not necessary to the crime. Under the law asgenerally laid down, insanity is a defense to crime when the insanity isso far advanced as to blot out and obliterate the sense of right andwrong or render the accused unable to choose the right and avoid thewrong. Of course, legal definitions of scientific terms, processes, orthings, do not ordinarily show the highest wisdom. It is safe to saythat few judges or lawyers have ever been students of insanity, of therelation of "will" to "conduct," or of other questions of science orphilosophy. Each man confines himself to his field of operation, and thelove of living does not induce him to go far from the matter in hand,which to him means the base of supplies.

The insane are exempted from punishment for crime on the ground thatthey are not able to prepare and attend to their cases when placed ontrial and on the further ground that their "free will" is destroyed bydisease or "something else," and therefore they could form no intent. Inanother place I have tried to point out the fact that the acts of thesane and the insane are moved by like causes, but this is not the theoryof the law.

Insanity is often very insidious. Many cases are easily classified, butthere is always the border line, the twilight zone, which is sure toexist in moral questions and in all questions of human conduct, and thisis hard to settle. It is generally determined by the feelings of a jury,moved or not by the prejudice of the public, depending on whether thecommunity has been lashed or persuaded to take a hand in the conduct ofthe case.

Lawyers and judges are not psychologists or psychiatrists, neither arejuries. Therefore the doctor must be called in. As a rule, the lawyerhas little respect for expert opinion. He has so often seen and heardall sorts of experts testify for the side that employs them and givevery excellent reasons for their positive and contradictory opinions,that he is bound to regard them with doubt. In fact, while lawyersrespect and admire many men who are expert witnesses, and while manysuch men are men of worth, still they know that the expert is like thelawyer: he takes the case of the side that employs him, and does thebest he can. The expert is an every-day frequenter of the courts; hemakes his living by testifying for contesting litigants. Of coursescientific men do not need to be told that the receipt of or expectationof a fee is not conducive to arriving at scientific results. Everypsychologist knows that, as a rule, men believe what they wish tobelieve and that the hope of reward is an excellent reason for wantingto believe. It is not my intention to belittle scientific knowledge orto criticise experts beyond such general statements as will apply to allmen. I have often received the services of medical experts when valuabletime was given without any financial reward, purely from a sense ofjustice. But all men are bound to be interested in arriving at theconclusion they wish to reach. Furthermore, the contending lawyers arewilling to assist them in arriving at the conclusions that the lawyerwants.

It is almost inevitable that both sides will employ experts when theyhave the means. The poor defendant is hopelessly handicapped. He is, asa rule, unable to get a skillful lawyer or skillful experts. A doctor'sopinion on insanity is none too good, especially in a case where he iscalled only for a casual examination and has not had the chance for longstudy. The doctor for the prosecution may find that the subject can playcards and talk connectedly on most things, and as he is casuallyvisiting him for a purpose, he can see no difference between him andother men. This may well be the case and still have little to do withinsanity. Experts called for the defense cannot always be sure that thepatient truthfully answers the questions. A doctor must make up his mindfrom examining the patient, except so far as hypothetical questions maybe used. In all larger cities, certain doctors are regularly employed bythe prosecution. While it would be too much to say that they always findthe patient sane, it is safe to say that they nearly always do.Especially is this true in times of public clamor, which affects allhuman conduct. A court trial with an insanity defense often comes downlargely to the relative impression of the testimony of the experts whoflatly contradict each other, leaving with intelligent men a doubt as towhether either one really meant to tell the truth. The jury knows thatthey are paid for their opinions and regards them more or less as itregards the lawyers in the case. It listens to them but does not relyupon their opinions. Expert testimony is always unsatisfactory in acontested case. Under present methods, it can never be any different.

There is another danger: juries do not know the difference in thestanding, character and attainments of doctors, so the tendency isalways to find the man who will make the best appearance and testifythe most positively for his side. This is unfair to the expert, unfairto science, and unfair to the case.

The method for overcoming this difficulty that has received mostsanction from students is that experts shall be chosen by the state andappear for neither side. This, like most other things, has advantagesand disadvantages. State officials, or those chosen by the state,usually come to regard themselves as a part of the machinery of justiceand to stand with the prosecuting attorney for conviction. It will mostlikely be the same with state defenders. No one who really would defendcould be elected or could be appointed, and it would work out in reallyhaving two prosecutors, one nominally representing the defense. Adefendant should be left to get any lawyer or any expert he wishes. Noone can be sure that the state expert will be better than the others.All one can say is that state experts may not be partisans, but, ineffect, this would mean that they would not be partisans for thedefendant. The constant association with the prosecutor, the officers ofthe jail, the public officials, and those charged with enforcing thelaw, would almost surely place them on the side of the state. Such menmust be elected or appointed by some tribunal. This brings them to theattention of the public and makes them dependent on the public. Theexpert's interest will then be the same as the interest of theprosecutor and the judge.

The prosecuting attorney is not a partisan. His office is judicial. Heis not interested in convicting or paid for convicting, and yet, no saneperson familiar with courts would think that the defendant could besafely left in his hands. Assuming he is honest, it makes littledifference. Almost no prosecutor dares do anything the public does notdemand. Neither, as a rule, has he training nor interest to study anysubject but the law. The profounder and more important matters affectinglife and conduct are a sealed book which he could not open if he would.Very soon under our political system the expert business would gravitateinto the hands of politicians, the last group that should handle anyscientific problem. I am free to confess the difficulties of the presentsystem, but some other way may be even worse. It must always beremembered that this country is governed by public opinion, that publicopinion is always crude, uninformed and heartless. In criminal casesthere is no time to set it right. The position of the accused is hardenough at best. He is really presumed guilty before he starts. Everylawyer employed to any extent in criminal practice knows that in animportant case his greatest danger is public opinion. He would not takethe officers and attaches of the court as jurors, although they mightbe good men, for their interest and psychology would be always forconviction.

If defendants were not regarded as moral delinquents, if the examinationimplied no moral condemnation, if it was only a scientific investigationas to where to place him if he is anti-social, if public opinionsupported this view, then experts should be appointed by the court. Onthis phase of the case there would be little need of experts. I would bewilling to go further and say that then, too, the partisan lawyer, thehired advocate, should disappear. The machinery of justice would beall-sufficient to take care of the liberties of every man, to give himproper treatment in disease, to restore him to freedom when safe, and,when that time does come, the unseemly contest in courts will disappear,and justice, tempered with mercy, will have a chance.

XX

PUNISHMENT

Assuming that man is justified in fixing the moral worth of his fellow;that he is justified in punishment for the purpose of making theoffender suffer; and that these punishments according to the degree ofseverity will in some way pay for or make good the criminal act orprotect or help society or prevent crime or even help the offender orsomeone else, what finally is the correct basis of fixing penalties?

No science, experience, or philosophy and very little humanity has everbeen considered in fixing punishments. The ordinary penalties are first:fines, which generally penalize someone else more than the victim; thesewith the poor mean depriving families and friends of sorely neededmoney, and the direct and indirect consequences are sometimes small andsometimes very great. These can be readily imagined. If instead of finesa prison sentence is given, a sort of decimal system has been worked outby chance or laziness or symmetry of figures; certainly it has been donewholly regardless of science, for there is no chance to apply sciencewhen it comes to degrading men and taking away a portion of their lives.Generally ten days is the shortest. From this the court goes to twenty,then thirty, then sixty, then three months, then six months, then oneyear.

Why not eleven days? Why not twenty-four days? Why not forty days? Whynot seventy days? Why not four months or five, or eight or nine or tenmonths? Is there no place between six months in jail and a year in jail?The bids at an auction or the flipping of pennies are exact sciencescompared with the relation between crime and punishment and the processof arriving at the right penalty. If in the wisdom of the members of thelegislature the crime calls for imprisonment in the penitentiary, thenthe ordinary sentences run one, two, five, ten, fifteen, twenty, thirtyyears, and life, according to the hazard of the legislature, the whim ofthe court, the gamble of the jury, or the feeling and means ofexpression of the unthinking and pitiless crowd who awe courts andjuries with their cries for vengeance.

Neither does punishment affect any two alike; the sensitive and proudmay suffer more from a day in jail or even from conviction than anotherwould suffer from a year. The various courts and juries of the differentstates fix different penalties. Even in the same state there is no sortof resemblance to the punishments generally given for similar crimes.Some jurisdictions, some juries and some courts will make these three orfour times as severe as others for the same things. Some days the samejudge will give a longer sentence than on other days. In this judges arelike all of us. We have our days when we feel kindly and sympathetictoward all mankind. We have our days when we mistrust and dislike theworld in general and many people in particular. Largely the weatherinfluences those feelings. Therefore, the amount of time a person spendsin prison may depend to a great extent on the condition of the weatherat the time of conviction or when sentence is passed. The physicalcondition of judge or jury, and above all, their types of mind, areall-controlling. No two men have the same imagination: some are harshand cruel; others kind and sympathetic; one can weigh wheat and corn andbutter and sugar; one can measure water and molasses and gasoline. Whenone measures or weighs, one can speak with exactness regarding the thinginvolved. Justice and mercy and punishment cannot be measured orweighed; in fact there is even no starting point. The impossibility ofit all makes many of the humane and wise doubt their right to passjudgment upon their fellow man. Society no doubt is bound byself-protection to resist certain acts and to restrain certain men, butit is in no way bound to pass moral judgments.

Under any system based on a scientific treatment of crime, men would betaken care of as long as it was necessary to restrain them. It would bedone in the best possible way for their own welfare. If they ever wereadjudged competent to enter society again, they would be released whenthat time came. Neither under a right understanding, and a humane,scientific and honest administration, would it be necessary that placesof confinement should be places of either degradation or misery. In factthe inmate might well be put where he could enjoy life more than he didbefore he was confined. It might and should be the case also that hecould produce enough to amply take care of himself and provide for thosewho would naturally look to him for support, and perhaps makecompensation for the injury he had caused to someone else.

It is obvious that this cannot be done until men have a different pointof view toward crime. In the last hundred years much has been done tomake prisons better and to make more tolerable the life of the inmates.This has been accomplished by men who looked on criminals as being atleast to a certain extent like other men.

Above all, as things are now, the prison inmate has no chance to learnto conform unless hope is constantly kept before him. He should be likethe convalescing invalid, able from time to time to note his gradualprogress in the ability to make the adjustments that are necessary tosocial beings. No patient in a hospital could be cured if he wereconstantly told that he could not get well and should not get well. Hisimagination should be enlarged by every means that science can bring tothe teaching of man.

First of all there must be individual treatment. No one would think ofputting hundreds or thousands of the ill or insane into a pen, givingthem numbers, leaving them so that no capable person knows their names,their histories, their families, their possibilities, their strength ortheir weaknesses. Every intelligent person must know that this wouldinevitably lead to misery and death. The treatment of men in prison is amuch more difficult problem than the care of the physically diseased. Itrequires a knowledge of biology, of psychology, of hygiene, of teachingand of life; it needs infinite patience and sympathy; it needs thoroughacquaintance and constant attention. It is a harder task than the onethat confronts the physician in the hospital, because the material ispoorer, the make is more defective, and the process of cure ordevelopment much slower and not so easily seen.

No person is entirely without the sympathetic, idealistic and altruisticimpulses, which after all are the mainsprings of social adaptation.Probably these innate feelings can be found in prisoners as generally asin other men. It is the lack of these qualities that often keeps menoutside the jail. They "get by" where kindly and impulsive men fail. Alarge part of the crime, especially of the young, comes from the desireto do something for someone else and from the ease with which personsare led or yield to solicitation.

The criminal has always been met by coldness and hatred that have madehim lose his finer feelings, have blunted his sensibilities, and havetaught him to regard all others as his enemies and not his friends. Theideal society is one where the individuals move harmoniously in theirvarious orbits without outside control. The governing power of a perfectorder in its last analysis must be within the individual. A perfectsystem probably will never come. Men are too imperfect, too weak, tooignorant and too selfish to accomplish it. Still, if we wish to gotoward perfection, there is no other road.

One of the favorite occupations of legislatures is changing punishmentsin obedience to the clamor of the public. In times of ordinarytranquility a penalty may even be modified or reduced, but let thenewspapers awaken public opinion to crime by the judicious use ofheadlines and a hot campaign, let the members feel that there is apopular clamor and that votes may be won or lost, and the legislatureresponds. This is generally done without reference to the experience ofthe world, without regard to the nature of man, with no thought of thevictim, and with no clear conception of how the legislation will reallyaffect the public.

The demand is constantly made that such crimes as kidnapping, trainrobbing, rape and robbery should be punished with death, or at leastwith imprisonment for life. Irrespective of its effect on the criminal,what is the effect on the victim of the criminal? A man is held up on alonely highway; the robber does not intend to kill. His face is exposed.If the penalty for robbery is life imprisonment, he kills to avoiddetection. If it is death, he kills even before he robs. The same thingoperates in rape, in burglary, and in other crimes. In all propertycrimes not only is no killing intended or wanted, but precautions aretaken to guard against killing. All laws to make drastic penaltiesshould really be entitled: "An Act to Promote Murder."

Making penalties too drastic destroys the effect meant to be produced.Public clamor does not last forever. Men grow tired of keeping theirtongues wagging on the same subject all the time. A state of frenzy isabnormal and when it subsides the temperature not only goes back tonormal, but as far below as it has been above. When the fury has spentitself jurors regain some of their human feeling and refuse to convict.History has proved this over and over again, and still politiciansalways seek to ride into power on the crest of the wave; when the wavemoves back, they can easily go back with it. Even if the severepunishments should be continued without abatement, these soon lose theirpower to terrify. Communities grow accustomed to hangings; they get usedto life sentences and long imprisonments and the severity no longerserves to awe. The cruelty serves only as a mark of the civilization ofthe day. Some day, perhaps, a wiser and more humane world will marvel atour cruelty and ignorance, as we now marvel at the barbarity of thepast.

XXI

THE EFFECT OF PUNISHMENT ON OTHERS

The ordinary man who hears of a crime hates the criminal and wants himto suffer. He does not picture the malefactor as a man who, for someall-sufficient reason, has committed a dreadful act. Still less does heask: "Has he a father or mother, a wife or children, brothers orsisters, and how are these affected by his deed?" No one canintelligently deal with the criminal without considering these.Practically no inmate of a prison stands alone. He is a member of afamily or small social group, and inevitably the interests of theseothers are more or less closely bound up with his. If punishment isjustified for its influence on society, these must be taken into accountwith the other members of the social organization.

The criminal, it must be remembered, is almost always poor. He has amother, brothers and sisters, wife or children, dependent for support toa large extent, upon his casual earnings. He is placed in jail or thepenitentiary and the family must make new adjustments to life. Themother or wife may go to work at hard labor for a small return; thechildren may be taken out of school and sent to stores or factories, becondemned to lives of drudgery that will often lead to crime. The familymay be broken up and scattered through institutions and the poorestshelters. A complete transformation for the worse almost always comesover the home. It is safe to say that at least three or four are closelytouched by the misfortune of every one. These lives must be readjusted,and the chances are that the new adjustments will not be equal to theold, if for nothing else than because the conviction is a serioushandicap in their struggles. Let anyone go to a city jail on a visitingday and see the old mothers, the stunned and weeping wives, the littlechildren, down to babes in arms, who crowd around the corridors to get alook at the man behind the bars. To them at least he is a human beingwith feelings and affections, with wants and needs. All of these canrecount his many good qualities which the world cannot see or know.Their first step is to borrow or to sell what they can to provide meansfor his defense. Everything else is cast aside. Day after day they visitthe jail and the lawyer, contriving means to save liberty or life. Whenthe trial comes, they watch through its maze in a dazed, bewildered way.They know that the man they love is not the one who is painted in thecourt room, and at least to them he is not. If he is convicted and goesto prison for a term of years, then month by month the faithful familygoes to see him for an hour in the prison, visiting across the table inopen view of guards and others as unfortunate as they. The familyfollows all sorts of advice and directions and seeks out many hopelessclews for men of influence and position who can unlock prison doors. Theweeks run into months and the months into years, and still many of themkeep up their hopeless vigil; some are driven to drudgery, some tocrime, some to destruction for the man whom the state has punished thatsociety may be improved. It is safe to say that the state ruins at leastone other life for every victim of the prison.

No provision is made for the dependent families of the wretched man.Ruthlessly society sends the man to prison and sees the daughter leaveschool, a mere child, and go to work. What becomes of her it does notknow or care. It seems not to know that she exists. The state sees theconvict's boy working at casual tasks and growing up on the streets,while his father is paying the penalty of his act. He may on thisaccount follow his father to jail; it is not society's concern.

Assuming that an offender must be confined for the protection ofsociety, as some no doubt must be, still the effect on the family andhow to prevent its destruction should be among the first concerns in thedisposition of the case.

XXII

EVOLUTION OF PUNISHMENT

Among primitive peoples the penal code was always short. Desire forproperty had not taken possession of their emotions. Their lives weresimple, their adjustments few, and there was no call for an elaboratecode of prohibited acts. Their punishments were generally simple, directand severe: usually death or banishment which often meant death,sometimes maiming and branding, so that the offender might serve as aconstant warning to others.

Primitive peoples early asked questions about their origin and destiny.The unknown filled most of the experiences of their lives. The realm ofthe known was very small. They had no idea of law and system, of causeand effect. They early began evolving religious ideas. Themanifestations of nature, the mystery of birth, the fear of death, thephenomena of dreams, the growth and harvesting of crops--all of thesewere beyond their understanding. They peopled the earth with gods to bepropitiated and appeased. Everything was the act of a specialprovidence. From early times religion and witchcraft furnished thechief subjects for the criminal code.

The penalties for the violation of the code were always severe,generally death, and by the most terrorizing ways. No other crime couldbe so great as to arouse the anger of the gods, and naturally no otherconduct should demand so severe a penalty as calling down the wrath ofthe gods. This would fall not only upon the offending man, but upon thecommunity of which he was a part. Even as man developed in knowledge andcivilization, this sort of crime continued to furnish the greaterproportion of victims and the most cruel punishments. Torture of themost fiendish sort was evoked to catch offenders and extort confessions.Difference of religious opinions was the worst crime. The inquisitionbecame an established thing. Sometimes a nation was almost wiped outthat heretics should be killed and heresies destroyed. The heretic wasthe one who did not accept the prevailing faith. The list of victims ofpunishment on account of religion, witchcraft, sorcery and kindred lawshas in the past no doubt been larger than for any other charges.

This kind of laws always called out the greatest zeal in theirenforcement. To the religious enthusiast nothing else was of equalimportance. It involved not only the life of man on earth but his lifethrough all eternity. Our statutes today are replete with such crimes,but the punishments have been lessened and, as a rule, communities willnot enforce them. But laws against blasphemy, working on Sunday, andSunday amusements of all sorts, are still on the books and enforced insome places. A large organization and an influential and aggressive partof the Christian Church are insisting that these laws shall be enforcedto the limit and that still others shall be placed among the statutes ofthe several states.

The methods of inflicting the death penalty have been various, thefavorite ways being burning, boiling in oil, boiling in water, breakingon the rack, smothering, beheading, crucifying, stoning, strangling andelectrocuting. Until the middle of the last century they were carriedout in the presence of the multitude so that all might be warned by theexample.

The number of crimes for which death and bodily torture have been thepunishment can scarcely be recorded, and if they could it would be of novalue. They would run into the hundreds and probably the thousands. Alarge part of these crimes are now obsolete. Doubtless more men havebeen executed for crimes they did not commit and could not commit thanfor any real wrong of which they were guilty.

Prisons came into fashion later than the death penalty, and as a form ofpunishment have gradually come to take the place of most deathpenalties. Prisons in the past have been loathsome places and not muchbetter than death. Prisoners have been packed together so closely thatlife was almost impossible. To incarcerate victims in prisons hasbrought terrible punishment not only on the prisoners and theirfamilies, but indirectly on the state. No doubt through the yearsprisons have been gradually improved. Many of their terrors have beenbanished. People have come to believe that even a prisoner should havesome consideration from the state. Penalties have likewise grown lesssevere and terms have been shortened, but this course has not beenregular or constant; the public readily relaxes into hatred andvengeance, and it is easy to arouse these feelings in men, since theylie very close to the surface. A constant struggle has always been wagedby the humane to make man more kindly, and yet probably his nature doesnot really change. A few months of frenzy may easily undo the work ofyears.

So long as men punish for the sake of punishment, there will be adisagreement between the advocates of long punishment and shortpunishment, hard punishment and light punishment. From the nature ofthings, there is no basis on which this can be determined. The onlything that throws any light on the question is experience, and men canalways differ as to the lessons of experience. Neither do they rememberexperience when feelings are concerned.

Punishment can deter only on the ground of the fear that flows from it.Fear comes from things that are more or less unusual. Man has littleabstract fear of a natural death; it is so unavoidable that it does noteven figure in the ordinary affairs of life. Extreme punishments maygrow so common that few give them any concern. They probably are socommon now that the impression they make is not very great. Lighter andeasier punishments would have the same psychological effect. In manycases a lenient punishment would also eliminate much of the hatred andbitterness against the world that are common to all inmates of prisons.

XXIII

CAPITAL PUNISHMENT

The question of capital punishment has been the subject of endlessdiscussion and will probably never be settled so long as men believe inpunishment. Some states have abolished and then reinstated it; some haveenjoyed capital punishment for long periods of time and finallyprohibited the use of it. The reasons why it cannot be settled areplain. There is first of all no agreement as to the objects ofpunishment. Next there is no way to determine the results of punishment.If the object is assumed it is a matter of conjecture as to what will bemost likely to bring the result. If it could be shown that any form ofpunishment would bring the immediate result, it would be impossible toshow its indirect result although indirect results are as certain asdirect ones. Even if all of this could be clearly proven, the worldwould be no nearer the solution. Questions of this sort, or perhaps ofany sort, are not settled by reason; they are settled by prejudices andsentiments or by emotion. When they are settled they do not staysettled, for the emotions change as new stimuli are applied to themachine.

A state may provide for life imprisonment in place of death. Someespecially atrocious murder may occur and be fully exploited in thepress. Public feeling will be fanned to a flame. Bitter hatred will bearoused against the murderer. It is perfectly obvious to the multitudethat if other men had been hanged for murder, this victim would not havebeen killed. A legislature meets before the hatred has had time to cooland the law is changed. Again, a community may have capital punishmentand nothing notable happens. Now and then hangings occur. Juries acquitbecause of the severity of the penalty. A feeling of shame or somebungling execution may arouse a community against it. A deep-seateddoubt may arise as to the guilt of a man who has been put to death. Thesentimental people triumph. The law is changed. Nothing has been foundout; no question has been settled; science has made no contribution; thepublic has changed its mind, or, speaking more correctly, has hadanother emotion and passed another law.

In the main, the controversy over capital punishment has been onebetween emotional and unemotional people. Now and then the emotionalistis reinforced by some who have a religious conviction against capitalpunishment, based perhaps on the rather trite expression that "God gavelife and only God should take it away." Such a statement is plausiblebut not capable of proof. In the main religious people believe incapital punishment. The advocates of capital punishment dispose of thequestion by saying that it is the "sentimentalist" or, rather, the"maudlin sentimentalist" who is against it. Sentimentalist reallyimplies "maudlin."

But emotion too has its biological origin and is a subject of scientificdefinition. A really "sentimental" person, in the sense used, is one whohas sympathy. This, in turn, comes from imagination which is probablythe result of a sensitive nervous system, one that quickly and easilyresponds to stimuli. Those who have weak emotions do not respond soreadily to impressions. Their assumption of superior wisdom has itsbasis only in a nervous system which is sluggish and phlegmatic tostimuli. Such impressions as each system makes are registered on thebrain and become the material for recollection and comparison, which goto form opinion. The correctness of the mental processes depends uponthe correctness of the senses that receive the impression, the nervesthat transmit the correctness of the registration, and the character ofthe brain. It does not follow that the stoic has a better brain than thedespised "sentimentalist." Either one of them may have a good one, andeither one of them a poor one. Still, charity and kindliness probablycome from the sensitive system which imagines itself in the place ofthe object that it pities. All pity is really pain engendered by thefeelings that translate one into the place of another. Both hate andlove are biologically necessary to life and its processes.

Many people urge that the penalty of imprisonment for life would be allright if the culprit could be kept in prison during life, but in thecourse of time he is pardoned. This to me is an excellent reason why hislife should be saved. It is proof that the feeling of hatred thatinspired judge and jury has spent itself and that they can look at themurderer as a man. Which decision is the more righteous, the one wherehatred and fear affect the judgment and sentence, or the one where theseemotions have spent their force?

Everyone who advocates capital punishment is really ashamed of thepractice for which he is responsible. Instead of urging publicexecutions, the most advanced and sensitive who believe in killing bythe state are now advocating that even the newspapers should not publishthe details and that the killing should be done in darkness and silence.In that event no one would be deterred by the cruelty of the state. Thatcapital punishment is horrible and cruel is the reason for itsexistence. That men should be taught not to take life is the purpose ofjudicial killings. But the spectacle of the state taking life must tendto cheapen it. This must be evident to all who believe in suggestion.Constant association and familiarity tend to lessen the shock of anyact however revolting. If men regarded the murderer as one who actedfrom some all-sufficient cause and who was simply an instrument in anendless sequence of cause and effect, would anyone say he should be putto death?

It is not easy to estimate values correctly. It may be that life is notimportant. Nature seems extravagantly profligate in her giving andpitiless in her taking away. Yet death has something of the same shocktoday that was felt when men first gazed upon the dead with awe andwonder and terror. Constantly meeting it and seeing it and procuring itwill doubtless make it more commonplace. To the seasoned soldier in thearmy it means less than it did before he became a soldier. Probably theundertaker thinks less of death than almost any other man. He is soaccustomed to it that his mind must involuntarily turn from its horrorto a contemplation of how much he makes out of the burial. If thecivilized savages have their way and make hangings common, we shallprobably recover from some of our instinctive fear of death and theextravagant value that we place on life. The social organism is like theindividual organism: it can be so often shocked that it grows accustomedand weary and no longer manifests resistance or surprise.

So far as we can reason on questions of life and death and the effectof stimuli upon human organisms, the circle is like this: Frequentexecutions dull the sensibilities toward the taking of life. This makesit easier for men to kill and increases murders, which in turn increasehangings, which in turn increase murders, and so on, around the viciouscircle.

In the absence of any solid starting point on which an argument can bebased; in the absence of any reliable figures; in the absence of any wayto interpret the figures; in the absence of any way to ascertain theindirect results of judicial killings, even if the direct ones could beshown; in the impossibility through life, experience or philosophy offixing relative values, the question must remain where it has alwaysbeen, a conflict between the emotional and unemotional; the"sentimental" and the stolid; the imaginative and the unimaginative; thesympathetic and the unsympathetic. Personally, being inclined to apurely mechanistic view of life and to the belief that all conduct isthe result of certain stimuli upon a human machine, I can only say thatthe stimuli of seeing and reading of capital punishment, applied to mymachine, is revolting and horrible. Perhaps as the world improves, thesympathetic and imaginative nature will survive the stolid and selfish.At least one can well believe that this is the line of progress if thereshall be progress, a matter still open to question and doubt.

XXIV

STIGMATA OF THE CRIMINAL

Lombroso and others have emphasized the theory that the criminal is adistinct physical type. This doctrine has been so positively assertedand with such a show of statistics and authority, that it has manyadvocates. More recent investigations seem to show conclusively thatthere is little or no foundation for the idea that the criminal is aseparate type. Men accustomed to criminal courts and prisons cannotavoid being impressed with the marks of inferiority that are apparent inprisoners. Most prisoners are wretched and poorly nourished, wear poorclothes and are uncared-for and unkempt. Their stunted appearance isdoubtless due largely to poor food, the irregularity of nourishment, andthe sordidness of their lives in general. One also imagines that aprisoner looks the part, and in his clothes and surroundings hegenerally does. It is hard for a prisoner to look well-groomed; he hasneither the opportunity nor the ambition to give much attention to hispersonal appearance. The looks of the prisoners are of little value.Nothing but actual measurements could give real information, and thesedo not sustain the theory of their being different from other men.

It is not possible to see how the criminal can be of a distinct physicaltype. Criminality exists only in reference to an environment. One cannotbe born a criminal. One may be, and often is, born with such animperfect equipment that he cannot make his adjustments to life, andsoon falls a victim to crime and disease. All that a physicalexamination could do would be to show the strength or weakness of thebody and its various organs. What may befall him will depend partly onthe kind and quality of his mind and nervous system, and partly on thephysical structure and the kind of experiences that life holds in storefor him.

No doubt thorough psychological examinations would reveal something ofthe brain, just as physical examinations certainly would determine thestrength and capacity of the body. This would be of material aid indetermining the kind of environment that should be found for theindividual, and if such environment could be easily found it would avertmost of the calamities which beset the path of the youth.

Something can be told of a person's character from his eyes, theexpression of the face and the contour of the head, but this informationis very misleading as our everyday experience shows. It is notnecessary to find stigmata in the prisoner to know that he was born theway he is. One's character must be fixed before birth whether Naturemarks it on one's head or not. Likewise every particle of matter movesfrom stimuli and obedience to law, regardless of whether it shows in theface or not. The strong are no more exempt from the law than the weak.All the difference is that they can longer and more easily avoiddisaster.

Everyone is in the habit of forming a hasty opinion of another byreading his face and noting his expression. But the indication given byfacial expression is mainly the product of the life that has been lived,and tells something of the part that the hidden emotions have played onthe body.

It has been generally believed that mind has its seat in the brain andthe nervous system. Later investigations, however, seem to show that itis the product of the whole physical organism. There is no chance tomeasure or weigh or still less assay the qualities of the machine. It iscertain that the quality of the mind depends very little upon either thecontour or size of the skull.

About all that can be learned of the mind and the character of the manmust be gathered from the manifestation of the machine. It is shown byhis behavior in action and reaction. This behavior is caused by thecapture, storage and release of energy through the ductless glands.

A defective mechanism either inherited or acquired through imperfectlybalanced glands will inevitably produce an imperfect mind and defectiveconduct. This it will be bound to do because the body is the mind.

As a matter of fact, no man is branded physically with the "mark ofCain." If criminology were so simple it would not be difficult tohandle. The manifestations of the human machine are infinite and onlypatience and careful study can find the points of weakness and ofstrength. That all brains and bodies have both is beyond dispute. Nophysical human structure was ever put together where the organs wereequally strong to do the work assigned to them. Some part of the bodyalways needs watchfulness and repair and can never be depended upon inemergencies. In times of overstress and strain, the defective organ ororgans will manifest their weakness. The intricate nervous system andthe brain, the unseen instincts and emotions likewise do not workperfectly; but as a rule the ones that underwork or overwork cannot beseen by a physical examination. It generally requires great subtlety tofind them, and careful treatment and environment to make the machinework fairly well in spite of these imperfections. This could beprovided; in most cases the machine could be placed in an environmentwhere it would work fairly well; but instead of this all the effortthat is made to keep the machine in shape is a threat of the jail if itgoes wrong; it is then left to run itself without help or assistance ofany kind.

While examinations of the head do not show marked differences betweenprisoners and others, a great distinction is seen between the generalproportion and the degrees of nourishment of prisoners and those notaccused of crime. Nothing is more common than the weak and underfedcondition of the delinquent and the criminal. This needs no expertexamination. It is obvious to all. The poor, scanty clothes and personalbelongings corroborate the fact that the accused is poor and has notenough to eat or wear, nor anything but the most scanty shelter. Inaddition to these facts, he is almost always ill. A report recentlypublished, based on investigations by a special committee of the NewYork State Commission of Prisons, shows that in the New York Reformatoryonly eight per cent passed the required physical examination. In thepenitentiary, where the average age was higher, only five per centpassed the test. In the work house--the home of the "down andouts"--only one per cent passed. The health tests employed were thosefor admission to the army. It was likewise found by the same commissionthat of those in good health or fair physical condition, eighty-five percent were self-supporting, while only eighteen per cent of those inpoor physical condition took care of themselves.

Disease and ill health, when found so generally, are in themselvesindications of a defective system, and such machines are constantlyexposed to temptation. Their needs are ever present and their povertygreat. Sickness and disease weaken or destroy such inhibitions as theunfortunate are able to build up, and they readily yield to crime.

XXV

THE GOOD IN CRIMINALS

The criminal is confronted in court with an indictment charging him witha violation of the law. He is a human being, like all others, neitherperfect nor entirely worthless. He has some tendencies and inclinationswhich the world calls good for lack of a better term, and some that itcalls bad for the same reason. In this he is like the jury and thejudge. The strength of the different tendencies is not the same in anytwo machines. The judge and jury are interested in determining whetherhe is good or bad; that is, better or worse than they themselves. Intheory he is tried on the charges contained in the indictment.

In most cases by a constant stretching of the rules of evidence hiswhole life may be involved. That is, proof may be offered of any act ofdelinquency that constituted a violation of the law, if in any waysimilar, or in any way connected with the one charged in the indictment.